77 Hawai'i 383, O'Connor v. Diocese of Honolulu

Citation77 Hawaii 383,885 P.2d 361
Decision Date23 November 1994
Docket NumberNo. 17546,17546
Parties77 Hawai'i 383 John H. O'CONNOR, Plaintiff-Appellant, v. The DIOCESE OF HONOLULU, a non-profit religious corporation, Joseph A. Ferrario, individually and as Bishop, Joseph Bukoski, III, individually and as Judicial Vicar, Defendants-Appellees, and Doe Defendants 1-100, Defendants.
CourtSupreme Court of Hawai'i

Joseph A. Ryan, Honolulu, for plaintiff-appellant.

William H. Gilardy, Jr. (John R. Aube, with him on the brief, of Watanabe, Ing &amp Kawashima), Honolulu, for defendants-appellees.


MOON, Chief Justice.

Plaintiff-appellant John J. O'Connor appeals from an order granting a motion to dismiss his complaint against defendants-appellees "The Diocese of Honolulu" (the Diocese), 1 Joseph A. Ferrario, then-Bishop of the Diocese, and Joseph Bukoski, III, Judicial Vicar of the Diocese (collectively, appellees). For reasons discussed below, we affirm.


This case involves a dispute primarily between O'Connor and Ferrario. O'Connor published a newspaper called The Catholic Lay Press, a paper he characterized as "printing the truth and ... in competition with the Bishop." 2 In the course of a dispute in which O'Connor and others were faced with the prospect of excommunication, Bishop Ferrario wrote to O'Connor stating:

If you are no longer associated in any way with the schismatic group of Our Lady of Fatima Chapel ... then you are still required by Canon Law, to present yourself to me individually and in person ... to provide evidence that:

1. You have ceased the publication, "The 'Catholic' Lay Press" or have removed from the mast head the adjective, "Catholic" and the phrase, "a Traditional Roman Catholic Family Newspaper Loyal to the Holy Father";

2. You will give a profession of faith in my presence whereby you reject any and all association with Archbishop Marcel Lefebvre, his excommunicated bishops as well as the rejection of the St. Pius X Society movement;

3. You will give an oath of obedience and loyalty to me as the diocesan bishop of Honolulu, since in communion with the Holy Father, I represent the Roman Catholic Church in the State of Hawai'i in all matters of faith and morals.

If you are not associated with the schismatic group but continue to publish without omitting the aforementioned # 1, then you will still be subject to a penal sanction but not that of excommunication unless you are still actively involved with the schismatics through your publication which does not have ecclesiastical approbation....

Apparently, O'Connor did not comply with the demands of Ferrario, as he was excommunicated, along with others.

In a seven count prolix complaint, O'Connor essentially alleged that: (1) he was wrongly excommunicated from the Roman Catholic Church; (2) the allegations leading to his excommunication were false; (3) appellees published the fact of his excommunication and made false statements about him; and (4) appellees engaged in acts that violated his rights to freedom of the press, freedom of speech, freedom of worship, and freedom to associate with others. Thus, O'Connor claimed that: (1) he was defamed by appellees; (2) appellees engaged in unfair and deceptive acts and practices and monopoly in violation of Hawai'i Revised Statutes (HRS) § 480-2; (3) Ferrario deceived and defrauded him and others; (4) appellees committed clergy malpractice; (5) the Diocese was liable for the acts of Ferrario and Bukoski under the doctrine of respondeat superior; and (6) the Diocese was negligent. O'Connor claimed that the acts of appellees caused him physical and mental suffering, loss of income, and other harm for which he should be compensated with general, special, punitive, and statutory treble damages. Throughout his complaint, O'Connor accused Ferrario of criminal activity, apparently offered to show that O'Connor's publication of such activity in The Catholic Lay Press provided an improper motive for O'Connor's excommunication. Relevant details of some of the claims are set forth below.

Appellees moved, under Rules 12(b)(1) and (6) of the Hawai'i Rules of Civil Procedure (HRCP), to dismiss the complaint. Appellees argued that the circuit court lacked jurisdiction "pursuant to the ecclesiastical abstention doctrine," a rule of constitutional law that, according to appellees, prohibits civil courts from entertaining "collateral civil suits against ecclesiastical officers for injuries arising from ecclesiastical acts."

After reviewing appellees' motion, the materials submitted in support and in opposition thereto, and hearing the arguments of counsel, the circuit court dismissed O'Connor's complaint with prejudice. 3


Together, the parties phrase six issues. We consolidate and rephrase them as:

Whether O'Connor's claims are barred from civil adjudication by the first and fourteenth amendments to the United States Constitution and article I, section 4 of the Hawai'i Constitution; that is, whether a state court can decide O'Connor's claims without resolving underlying controversies over religious doctrine, church law, or church governance.

Hawai'i's appellate courts have not addressed a similar question in any prior published opinion.


The circuit court did not state a reason for its dismissal; it simply granted appellees' motion to dismiss. However, appellees' motion was premised on and argued as a claim that the circuit court lacked subject matter jurisdiction. We therefore review it as such.

A trial court's dismissal for lack of subject matter jurisdiction is a question of law, reviewable de novo.... Our review is based on the contents of the complaint, the allegations of which we accept as true and construe in the light most favorable to the plaintiff. Dismissal is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief.... [W]hen considering a motion to dismiss pursuant to Rule 12(b)(1) the [trial] court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.

Norris v. Hawaiian Airlines, Inc., 74 Haw. 235, 239-240, 842 P.2d 634, 637 (1992), aff'd, 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994) (quotation marks and citations omitted).

A. Hawai'i Rule of Appellate Procedure 28(b)(4)

As a preliminary matter, we note that O'Connor's points on appeal are not points; they are arguments. Points must "refer to the alleged error committed by the court[.]" Rule 28(b)(4), Hawai'i Rules of Appellate Procedure (HRAP). O'Connor's points, however, do not refer to any error committed by the circuit court. 4

In this civil case, O'Connor's failure to comply with HRAP 28(b)(4) is alone sufficient to affirm the judgment of the circuit court. See HRAP 28(b)(4) ("points not presented in accordance with [HRAP 28(b)(4) ] will be disregarded"); City & County of Honolulu v. Kailua Auto Wreckers, Inc., 66 Haw. 532, 533, 668 P.2d 34, 35 (1983) (argument regarding award of costs and attorneys' fees not considered where no point of error was specified on the claim as required by predecessor Rule 3(b)(5)); Bloudell v. Wailuku Sugar Co., 4 Haw.App. 498, 503, 669 P.2d 163, 168 (1983) (to properly raise issue under predecessor Rule 3(b)(5), appellants were required to cite court orders as points of error). However, the policies of this court are to permit litigants to appeal and to have their cases heard on the merits, where possible. See, e.g., Montalvo v. Chang, 64 Haw. 345, 641 P.2d 1321 (1982); Jordan v. Hamada, 62 Haw. 444, 451-2, 616 P.2d 1368, 1373 (1980); Jones v. Dieker, 39 Haw. 208, 209 (1952). Thus, we elect, pursuant to HRAP 2, 5 to address the issue posed by this appeal.

B. The Ecclesiastical Abstention Doctrine

The first amendment to the United States Constitution provides, in relevant part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U.S. Const. amend. I. The free exercise clause of the first amendment is applicable to the states through the fourteenth amendment to the United States Constitution. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). Article I, section 4 of the Hawai'i Constitution (1978) provides, in relevant part, that "[n]o law shall be enacted respecting an establishment of religion, or prohibiting the free exercise thereof...."

We are obliged to afford parties the minimum protection required by the fourteenth amendment to the United States Constitution. Because this court has not been previously called upon to determine the extent to which Hawai'i's free exercise clause may be asserted as a defense to a civil lawsuit, we look to the opinions of the United States Supreme Court and other courts that have considered similar matters for guidance.

In Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976), the United States Supreme Court held that the Supreme Court of Illinois contravened the first and fourteenth amendments to the United States Constitution when it "inquir[ed] ... into matters of ecclesiastical cognizance and polity" 6 to resolve a church property dispute. There, Bishop Milivojevich was removed as Bishop of the American-Canadian Diocese of the Serbian Orthodox Church and defrocked. The Supreme Court of Illinois reviewed the church process by which Milivojevich was removed and "held that the proceedings of the Mother Church respecting Dionisije [Milivojevich] were procedurally and substantively defective under the internal regulations of the Mother Church and were therefore arbitrary and invalid." Id. at 698, 96 S.Ct. at 2375. Citing his own concurring opinion in Maryland & Virginia Churches v....

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